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Office of the Public Guardian

The Office of the Public Guardian (Scotland)
Hadrian House
Callendar Business Park
Callendar Road
FK1 1XR
DX 550360 FALKIRK 3
LP 17 - Falkirk
Tel: 01324 678 300
Fax: 01324 678 301

Web: www.publicguardian-scotland.gov.uk

Background

The Adults with Incapacity (Scotland) Act 2000 (the AWI Act) was one of the first pieces of social legislation passed by the Scottish Parliament. The Act received Royal Assent on the 9 May 2000. After carrying out an extensive consultation exercise with stakeholders and customers the AWI Act was subsequently amended in October 2007 and April 2008. The amendments were brought into force when The Adult Support & Protection (Scotland) Act 2007 received Royal Assent on 21 March 2007

What the Act does

The AWI Act provides a range of options to help adults who are or who may become incapable of looking after their own financial or welfare affairs. Under the terms of the AWI Act, an adult is a person who is aged 16 years or over. The Act is divided into 6 parts as follows:

Part 1 General

Defines general principles and includes some definitions. These are to be found in Section 1 and are critical to any decisions or actions made on behalf of an adult with incapacity. All necessary applications to the Sheriff will be by summary application.

The Office of the Public Guardian (OPG) was established. The Public Guardian, who also holds the Office of Accountant of Court has been given a variety of functions.

Public Guardian's Functions

• Supervise any guardian or any person authorised under an intervention order in relation to an adult's property or finances;
• Establish and maintain and make available separate registers for the following:
  1. continuing and welfare powers of attorney
  2. all authorisations to intromit with funds
  3. all guardianship orders pronounced in terms of the Act
  4. all intervention orders pronounced in terms of the Act
• To investigate any complaints regarding the exercise of functions relating to the property or financial affairs of an adult relating to any of the above;
• To investigate any circumstances in which the property or financial affairs of any adult appear to be at risk ;
• Take part and initiate court proceedings when necessary to safeguard the property or financial affairs of a person who is incapable.

Part 2 Powers of Attorney

Expands the arrangements that an individual can make for the possibility of their future incapacity. This can be done by appointing, within a power of attorney, a continuing attorney to look after a person's property and financial affairs and/or a welfare attorney to make decisions about personal welfare, including medical treatment. Powers of Attorney which are either begin or continue in the event of a granter’s incapacity will only be enforceable when registered with the Public Guardian.

The Public Guardian will investigate any complaints made against continuing attorneys when acting on behalf of an adult with incapacity. (The local authority investigate in relation to welfare attorneys). Applications can be made to the Sheriff by any person claiming an interest in the affairs of a person who has granted a power of attorney for various orders including suspension of the attorney or revoking the attorney's powers.

Part 3 Access to Funds

This is a procedure which allows an individual, individuals or organisations to obtain authority from the Public Guardian to access and manage the funds held in, for example, a bank or building society account. The account(s) must be in the sole name of an adult who is or no longer able or capable of accessing their funds. Access to more than one account may be authorised however authority cannot be given for accounts held in joint names.

Part 4 Funds of Residents in Care Establishments

Provides for the management by care establishments of the funds and property of residents who are unable to carry out this function themselves. The Care Commission for Scotland monitors this part of the AWI Act.

Part 5 Medical Treatment and Research

Introduces a statutory framework that protects the interests of a patient who is unable to consent to medical treatment. It allows treatment to be given to safeguard or promote the physical or mental health of the adult without their consent. Consultation with attorneys and others close to the adult will be required. Appeals can be made to the Court of Session where disagreement as to treatment persists. The Health Department of the Scottish Government monitors this part of the AWI Act.

Part 6 Intervention and Guardianship Orders

Intervention and guardianship orders now replace the offices of curator bonis, tutor at law, tutor dative and guardianship. Where a one-off decision is required eg, selling property, or signing a document an intervention order can be sought from the Sheriff. Where longer term arrangements are needed a guardianship order may be more appropriate, also obtained from the Sheriff. Applications may be made by local authorities or any person claiming an interest in the affairs of an adult with incapacity. When orders are made they require to be intimated to the Public Guardian. The Public Guardian will supervise the activities of financial guardians and those granted financial powers by way of an intervention order.

For further information vist The Office of the Public Guardian (Scotland) web site at:
www.publicguardian-scotland.gov.uk